When Copyright And Contracts Can Get In The Way Of Art

from the tales-from-the-creative-front-lines dept

Matsya the Fish

Back in January I was asked by the Brooklyn Museum to create a set of 11 iconic Vishnu avatars for an exhibit they’re planning in June. They didn't offer a whole lot of money – an “honorarium,” they called it – but said the images could be under a Free license (they said CC-BY-SA was fine). I chose to do it because it was a cool gig, right up my alley; and I love the Brooklyn Museum and was excited to have my art be part of one of their exhibits. It turned out to be more work than I expected, but I was very pleased with the results.

Thus began a comedy of errors, the climax of which may have yet to be reached.

Kurma the Tortoise

First they wanted revisions. Creating is fun, but revisions are not. For what they were paying, revisions weren’t part of the deal. We hadn’t signed a contract; they hadn’t even mentioned a contract. It was just an oral agreement for a modest sum of money (“honorarium”) and because the work would be CopyLeft they could do whatever they wanted with it, including revise and modify.

Varaha the Boar

I hadn’t freelanced in years. Sita Sings the Blues took up nearly all my time between 2005 and 2011. I had gained a lot of self confidence during that time and was out of my old freelancer habits. Instead of doing whatever they asked and resenting them for it, I did something I’d never done before: I said no. I made sure to be polite. I consulted trusted friends, examined my motives, and was willing to accept any consequences, including being “fired.”

Narasimha the Lion-Man

The worst case scenario would be that they wouldn’t use the art and wouldn’t pay me. I was more concerned about the art than the money. I like money too, of course. The best-case scenario would be that they would use the art and pay me. But if they didn’t pay me, I planned to release the art myself, so anyone could use it, including them. They would be free to use the art even if they didn’t pay me.

The happy fact is that once I realized saying “no” was an option, any budding resentment at their requests evaporated. They were just trying to get what they wanted, which is what everyone does. It fell on me to set boundaries. It’s not wrong to try to get what you want; it’s also not wrong to say no.

Vamana thye Dwarf

After I said no, they produced a contract – one that I never would have signed, even if they’d ever shown it to me before, which they hadn’t. The contract granted them unlimited revisions. Time passed, I politely stated and re-stated that the work was Free, and already completed; they could do whatever they wanted with it, and weren’t even legally bound to pay me.

Parashurama the Axe-Wielding Brahmin

Finally they removed the revisions clause – but added a new non-compete clause. This would make my work Free for everyone in the entire world to use, except me. I told them I couldn’t sign it, and they assured me it didn’t apply to the drawings I’d done, but anything I might do that would be “similar.” They said the non-compete language absolutely had to stay in. I again pointed out the work was done, they had all the image files, and they could do whatever they wanted with it, without a contract and without even paying me.

Rama the King

I understand why contracts can be useful: the producer wants assurance of payment, and the payer wants assurance of production. If either party fails to live up to their obligation, the other party can punitively refuse theirs. But I had already done the work. I didn’t need a contract to incentivize it. Of course I wanted to be paid, and I thought paying me would be the decent thing to do; but the work was done, and I placed no restrictions on it.

Krishna the Cowherd Prince

I don’t like contracts. They are overused and unnecessary in most cases. Often it takes more time to negotiate a contract than it does to execute the work itself. I agree it is uncool and wrong to promise money and not deliver, but I hope to never work with anyone who can’t be trusted to live up to such a simple promise. If they don’t, a contract is unlikely to make it better. I’d have to “go legal” on them to enforce it, and unless it’s a really huge amount of money they reneged on, I’d have to spend more money and time on the legal enforcement. Art and Law should stay as far away from each other as possible. I manage to get plenty of work done without contracts, and I manage to take in money as well.

Balarama the Brother of Krishna

Throughout all of this I refrained from releasing the images myself, so the Brooklyn Museum could have first use. First use bestows such a competitive advantage that copyright is irrelevant. If the Museum rolled out merchandise first, any potential competitors would be unlikely to catch up. The work would immediately be associated with the Museum, before any competitor could associate it with anything else. Any sane contract would have obligated me to grant them first use, but that wasn’t in their contract at all, even though the Free license was. Their contract was built on the assumption of copyright, just with a CC-BY-SA license inserted into it. (Law students take note: most lawyers have no clue about the implications of Free licenses. Please try to fix this.) The non-compete clause was pointless, but a first use provision would have been essential for them.

Buddha the Preacher

Anyway, time continued to pass, and they finally let me strike out the non-compete clause so I’d just sign the damn contract and make the project digestible to their bureaucracy. So I did, and they paid me! Slightly more than the initially specified “honorarium” too. This was back in March. I’ve been looking forward to the Vishnu exhibit ever since, eager to finally have my illustrations see the light of day in the glorious setting of the Brooklyn Museum.

The exhibit is set to open in June. It should be really cool! But it won’t include my illustrations, because on May 5th they informed me their director wants to “take it in another direction.” Yep, they dropped my art, with just a few weeks to go.

I’m really glad that I specified a Free license from the very beginning. If I had granted them a restrictive copyright, then, when they axed the art, no one would be able to use it. So here’s yet another benefit to Free Culture: a client can’t kill it.

Kalki the Avatar of the Future

Addendum: As Terry Hancock wrote in the comments on my blog: “in the end, the museum subsidized an enrichment of the commons, for which I am grateful to them.” Me too!

All images CC-BY-SA. Click for 640-pixel-square PNGs with transparent backgrounds. High resolution available here.

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It does measure the impact of copyright. Read it again. Because the museum said a 'Free License' was okay, and Nina used it, we have access to those pictures. Had the museum wanted traditional copyright protections, we would not be seeing these images.

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I thought a little more about your comment.

Which part of the story isn't about copyright? Is it the title perhaps?

"When Copyright And Contracts Can Get In The Way Of Art"

Or was it the part how the particular copyright that applies to these artworks allows them to be free? The entire point of the story is that if strict copyrights were applied to the artworks, they wouldn't be seen by the public. They would be locked up in the museums vaults. As the creator of these artworks, and because of the type of copyright, she is allowed to freely distribute them. Because of this we are able to enjoy them.

I've made my point. By all means take up the challenge and please post how the story isn't about copyright, or the impact of copyright and please please please point out which scenario isn't governed or affected by copyright.

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Copyright allows for free licenses.

Copyright applies to these works just as much as any work.
The fact that the author chose to license the works with minimal restrictions shows that copyright law is not necessarily in conflict with free distribution/use, if the author chooses that model.

So you both failed to clearly express your intentions and desires up front, had major drama and extensive uncertainty on both sides as a result, and in the end were forced to eke out a deal in which neither one of you got all of what you originally wanted.

If only there were some instrument that could be used to clearly lay out the expectations and obligations of multiple parties in advance...

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So you read the bit at the beginning that raised a verbal contract right?

Of course not. That would preclude being able to point out how dumb Nina is and how great it is to involve expensive lawyers in the minutia of every single day-to-day interaction.

Odd that the fact the museum paid up anyway was also ignored though - that's usually considered a win for a lawyer even though it wasn't what Nina was after. I wonder if the "win" would have been forcing the museum to use the art in it's exhibit with a contract whether they wanted to or not, or having a contact that allowed the museum to lock up the unused art instead of it still being released, or whether that even matters? I suspect the "win" may have been having a contract at all so more lawyers needed to be paid......

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I don't like contracts either, but ...

I prefer verbal or handshake deals to contracts. But I have been in several situations where, after we were working together on something, we ended up with differing interpretations of how income coming into our project was supposed to be shared. If we had worked out something on paper beforehand, then the situation would have been much more clear all along. And if we couldn't come to terms initially, then we wouldn't have proceeded.

Call it a contract. Call it a negotiated proposal. Call it whatever you want. But putting expectations down on paper can be useful.

Re: I don't like contracts either, but ...

Here's how I would describe an agreement these days:

"A list of expectations and obligations."

Putting those in writing and having all parties read and agree to them can serve as a form of clarity.

Sometimes no one involved has enough experience to anticipate all issues that might come up so those potential issues don't get listed. But as people gain more experience, they are often able to anticipate what might need to be dealt with and then they can discuss in advance how to handle those (e.g., consensus, arbitration, buy-out).

I've been involved with groups that have no officers, no formal rules, etc. But periodically something will come up (e.g., who can or can't become a member, what topics can be discussed in the group mailing list, where to meet for coffee), it gets discussed, and group understandings are either reinforced or changed. So even in the most casual of arrangements, there are usually some expectations and when those aren't met, some action results. Even when there are just two people going out for coffee, there are all sorts of unstated social rules that people have in their heads. Not having a contract doesn't mean human interactions are necessarily simple.

Contracts

There is a difference between a legal contract negotiated between lawyers representing the two parties, and a contract written in plain English by two, normal non-legal parties.

You don't need lawyers to work with individuals if you use the second kind of contract, which in most cases is about a paragraph long. The problem is working with bureaucracies which are different since they operate on the principle of CYA. The minute CYA is the overriding principle then lawyers are indispensable.

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I think that often two people or entities will start out with a verbal or simple agreement. But then maybe something comes up that wasn't discussed beforehand. So the next time one of those people or entities does a similar deal, an additional clause may be inserted to address that problem. And then maybe something else comes up that wasn't discussed beforehand, and then that clause gets inserted into the next deal. Before long you end up with a multi-page document.

I know a musician who draws up her own booking contracts. Each time she runs into a problem, she adds a clause for the next booking date. For example, one time she and her band played an outside concert in the hot sun without any shade. So from that point on, whenever she agreed to play an outdoor concert, she requested that a canopy be included. Her contracts also spell out how many hours to play, how many set breaks, whether or not food and drink are provided, what happens if bad weather leads to cancellation, and so on.

And any musician who has been underpaid at the end of the night will start using contracts from that point on to show proof of what was supposed to be paid.

All of you who have had repair work on your homes or cars knows the value of having something on paper that explains what your recourse might be if the repair job fails.

So, yes, I think you can keep the lawyers out of these sorts of things, but anytime you have an agreement that doesn't address a problem, chances are you'll going to include something about that problem the next time you enter into a deal.

It would have been like so many copyrighted books, movies and songs that the copyright holder does not feel warrant reprinting - locked away is some terrible limbo. Thankfully, this was not the case this time.

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Yep, locked away in limbo for 70 years after their dead! Unless their great great great grandkids decide to release a copy once it's in the public domain, if either still exist, it will still never see the light of day again. Copyright is about creating an artificial scarcity. Stupidly long copyright is about creating artificial obsolescence as well.

contract?

Just to be clear here, Nina -- it's not that you don't like "contracts." It's that you didn't like the particular things the museum was asking you to agree to. Your original oral agreement was a contract -- in literal legal terms. A contract does not have to be written to be enforceable (except in certain transactions (principally sales of land or of goods in excess of $5000). You're absolutely right to have said no to what they were asking of you. But that's what negotiation is. It's an old truism that's true -- every negotiation starts when one side says "no."

Re: contract?

Written or oral, it's a "contract" if you plan to get lawyers and courts to enforce it. Otherwise it's an "agreement". I'm all for agreements, but I have no intention to sue or legally threaten anyone if they don't live up to their end.

Unless there's a ton of money involved. For huge deals, the hassle of a contract might be worth it. But not for most gigs.

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This tweet sums it up:

"When Copyright And Contracts Can Get In The Way Of Art." A perfect example of why lawsuits happen. http://zite.to/iXBBiV #naiveartist

Weird. First off, that's the only negative tweet I can find in reference to this, and it comes from a lawyer. If you read the tweets from the *artist* community, they all seem to like it. What does that tell you?

Furthermore, I'd argue that Clancco's got it backwards. If Nina was naive, none of this would have happened, and she would have just taken the first *bad* contract they gave her, and this work would have been disappeared. Instead, because she's NOT naive, she was able to make sure that the work wasn't locked up.

I just reread the post and I can't see anything that suggests that Nina was the naive party here. If anything, it seems like it was the Museume who acted naively.

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I don't think that terminology/distinction between a "contract" and an "agreement" is shared by the majority of English speakers. Certainly not by courts.

You don't need to anticipate legal action to form a binding contract.

I was thinking the same thing, but then I looked up "agreement" in Black's:

agreement. (15c) 1. A mutual understanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons. 2. The parties' actual bargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade, and course of performance. UCC § 1–201(3).

“The term ‘agreement,’ although frequently used as synonymous with the word ‘contract,’ is really an expression of greater breadth of meaning and less technicality. Every contract is an agreement; but not every agreement is a contract. In its colloquial sense, the term ‘agreement’ would include any arrangement between two or more persons intended to affect their relations (whether legal or otherwise) to each other. An accepted invitation to dinner, for example, would be an agreement in this sense; but it would not be a contract, because it would neither be intended to create, nor would it in fact create, any legal obligation between the parties to it. Further, even an agreement which is intended to affect the legal relations of the parties does not necessarily amount to a contract in the strict sense of the term. For instance, a conveyance of land or a gift of a chattel, though involving an agreement, is ... not a contract; because its primary legal operation is to effect a transfer of property, and not to create an obligation.” 2 Stephen's Commentaries on the Laws of England 5 (L. Crispin Warmington ed., 21st ed. 1950).

“An agreement, as the courts have said, ‘is nothing more than a manifestation of mutual assent’ by two or more parties legally competent persons to one another. Agreement is in some respects a broader term than contract, or even than bargain or promise. It covers executed sales, gifts, and other transfers of property.” Samuel Williston, A Treatise on the Law of Contracts § 2, at 6 (Walter H.E. Jaeger ed., 3d ed. 1957).

I have no idea if what Nina had was in fact a contract, but apparently there is a difference between a contract and an agreement, just as she said.

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Interesting. That makes sense. Although an intent to enforce something in court is still not necessary to form a contract.

I agree with that.

I thought this part was interesting:

Further, even an agreement which is intended to affect the legal relations of the parties does not necessarily amount to a contract in the strict sense of the term. For instance, a conveyance of land or a gift of a chattel, though involving an agreement, is ... not a contract; because its primary legal operation is to effect a transfer of property, and not to create an obligation.”

In my state, such donations are in fact considered to be contracts, even though there is no reciprocal obligation. My state follows the civil law tradition and not the common law tradition, though, so perhaps the other states view this differently.

Contracts on Free

To add to the insanity, I have counseled CLIENTS in the same way - though my reasons are a little different.
If you are offering something free, as Nina was (congrats, Nina!) you don't WANT a contract! Reason? The contract puts you in a box (as Nina pointed out, at least, wrt some of the terms). NOT having a contract forces everyone back to the oral or email agreement, and, while anything in writing will be construed against the author, using a little care, as Nina did, makes that a "don't care".
AS AN ATTORNEY - contracts are a tool; use them only if you need that tool! Otherwise, take a tip from Nina!
Obviously this doesn't matter, Nina being a good person, but trying to demand more COULD have put the museum in a "bad place". If someone WANTED to sue them, trying to change things AFTER an agreement had been made, and Nina had performed (contract, doctrine of part performance!) COULD have opened the museum up to charges of a breach!

I'm a freelance web designer, and I never use contracts unless the client supplies one for me to sign. I can't stand unnecessary bureaucracy, and I prefer to make it clear that I trust my clients to pay me once the work is done, and that they can trust me to do the work as I stated I would do. It makes things so much simpler, and to know that you can trust people rather than relying on a piece of law-enforceable paper is just a huge weigh of my shoulders, and from what I hear, off of my client's shoulders as well. So far I haven't run into any problems, and so I'll keep the same approach unless I find a better one.

Great artwork by the way! You're right to not accept revisions, at least in this case... people always want revisions, even only if it makes them feel better about the artwork. Art is art, nobody will ever perfectly agree on it, that's the whole point!

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For many years I was never stiffed on a payment, but more recently I have been several times. The people/companies who didn't pay had run out of money, so I was willing to be flexible, but as time went on, I realized I had nothing down on paper that said I was owned the money. And that would have come in handy if other people/companies entered the picture and didn't realize I was still owned money. If they didn't understand that there was an outstanding debt, they probably weren't going to pay me either. In one case I tried to get an agreement after the fact because it looked like a new company might be coming in to run things. All I was trying to do was formalize what had been previously verbally agreed upon between me and the person I did the work for, but no one wanted to acknowledge that there was an outstanding debt.

So having been burned a few times, I have learned the value of being more precise than just a verbal agreement.

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you make my heart sing ...

... Nina Paley. Ok so this is how this evening has panned out for me so far. Earlier in the evening I was feeling pissed at some important people in my life. Lately I have realized the value of not losing your cool and thus I managed to get past the initial desire to scream and shout. Then an overwhelming realization hit me. I was filled with resentment. At first the word itself sounded bitter to the ear. I guess that's what happens when resentment is shown its image in a mirror. Gradually I realized that I was having a personal breakthrough of the sort Oprah tries to facilitate. So here was this one word "resentment" echoing in my brain, leading me to grapple with the resentment within me and trying to understand its origins so as to be able to root it out.

Cut to couple of years back ... I feel that "Sita Sings the Blues" is one of the most remarkable achievements in animation in recent memory. More importantly it does for the Ramayana what no TV serial or film has managed to in the country of the Ramayana's origin - to give this ancient text meaning and context for the individual assaulted by the bewildering complexity of modern life - thus bringing out the full glory of one of India's greatest cultures treasures. As I write this let me mention that my present background wallpaper is a screen capture from this movie - the one with the Goddess (Laxmi?) on the left and the peacock-turntable on the right.

Cut to present ... It is late night and having secured a goal, an understanding of "resentment" as it resides in me, I set out for another round of aimless browsing. I start with Feedly, jump to TorrentFreak, to TechDirt, to Mafiaafire.com and finally back to this site where I am lucky enough to notice your blog post. Needless to say, not only have you done an incredible job depicting Vishnu's dashavatars (ten avatars) your post makes wonderful reading. You do a great job of illustrating the comic tragedy that is the copyright culture with your personal anecdote. Oddly enough you start out with a dialogue on "resentment" where your insight - It’s not wrong to try to get what you want; it’s also not wrong to say no - is something that instantly resonated with the thoughts bouncing around in my mind at that moment. Ergo, I end up writing this obnoxiously long comment. Coincidence, Karma or Vanity? We'll never know ;-).

way to stick to your guns Nina. If only more people in the creative industries took this kind of stand we'd be well on our way of neutering the parasites we call attorneys. That group of individuals controls far too much of our culture and should be slapped down to a level that limits their abilities to interpreting law rather than controlling/creating it.

pro-paper

although lawyers are very good at finding sharp edges, holes and loopholes, they can do more with a 30 pages contract than with a 1 page contract.

and a 1 page contract has the advantage that with two sides acting in good faith it is a great tool for mediation and reconciliation. in my mind, your case was classic -
two sides who suffered from the intervention of a 3rd party (such as museum's bureaucrats), maybe from the known phenomenon of "remembering things differently", or from the "we've never been that specific"....

had you doodled a piece of paper stating something of the sort of :
"nina will make X items for Brook for the usage at event A. they will be handed over to brook until date Y. the items shall be under license Z. brook shall pay Nina a honorary fee under his discretion. B will mediate in each case of disagreement"
life might have been a lot easier. especially if B is someone respected by both sides, and someone who is willing to get phone calls here and there without asking for payments...

i have to admit, though, that following your story, i'd add to this short contract a "no rev" clause somewhere... that is the natural evolution of contracts... and each personal story will add another clause, which is why contracts get longer all the time (i'd hate to be a lawyer at the year 3000).

Re: pro-paper

Is an email saying:

"Yeah I'll do [that art] for you and hand it over well in time for your exhibition and after you get it you can do what you like with it (so can anyone by the way... check [this link to the license] to see what that means if you're curious). And your going to give me $xxx for it? That's cool, thanks."

...any less clear? Is it ambiguous? Does it not form an agreement that goes as far as you need if you don't plan to argue about the terms in a court of law anyway?

There are many cases where the deliverables and timings and all sorts of complexity demand more rigour, but this hardly seems to be one of them. The equation of:
Deliver bunch of really cool Indian art = You give me money if you want to
Seems to encompass it nicely. Why complicate things? It seems to me the "mediator B" in this case to be acceptable to the museum would almost certainly have been a lawyer of some kind and inevitably not free and would most likely have lead to more wrangling rather than less.

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(i'd hate to be a lawyer at the year 3000).

I'd bet many lawyers would disagree with you there. Every new line is a billable line, as well as a verification throughout the rest of the contract for conflict. The longer each contract gets the exponentially complex they get.

It is sadly in every lawyers' interest to make every contract as complex and long as possible for their top dollar.

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Drawing up a simple agreement by the artist shouldn't require a lawyer. You can develop something that everyone can agree upon which doesn't require a lawyer to draft or to read. That's one of my points. You can keep things relatively simple and do it on your own.

From my own past experience it will prevent some headaches down the road to have something on paper (or in digital form -- even just email correspondence -- because there will be less misunderstanding about how everyone wants/expects things to be handled.

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What a lot of musicians do is just to pull a boilerplate agreement and customize it a bit. I would imagine people in the arts and writers have done the same thing.

If you are doing a project that isn't going to bring in much money, you can't afford to go to a lawyer every time. Most of these things are pretty standard so you can find a model somewhere on the Internet and adapt it for your needs. The biggest single thing for anyone in the arts is to make sure you haven't signed away the rights of your work if that's not what you intent to do. If you don't know what you are signing, then don't. But if you are the one drawing up the ageement and you are only agreeing to what you intent to offer, then you are on safer ground.

I've looked at my share of contracts and agreements. I've signed some, I've modified some, and I've refused to sign some. Most of this stuff is simple enough and the stakes are low enough that lawyers don't need to become directly involved.

So, again, based on my personal experience, I'll say that having something in writing heads off problems down the road. But you don't necessarily have to hire a lawyer at hundreds of dollars an hour to do this for you.

nice dodge

I perceive that non-compete clause as an attempt to bury Nina for her insolence. It was a simple trick designed to give up her rights, but they're so full of their own bureaucracy that they didn't realize Nina could simply say "no." What a powerful word.